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Bensusan v. County of Kern

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 7, 2009

JOSEPH A. BENSUSAN, PLAINTIFFS,
v.
COUNTY OF KERN, KERN COUNTY SHERIFF'S DEPARTMENT, FORMER SHERIFF MACK WIMBISH; DETENTION OFFICER D. LINDINI, DETENTION OFFICER R. FOWLER; DETENTION OFFICER M. ADAME, DETENTION OFFICER T. WRIGHT, SENIOR DETENTION DEPUTY D. MOORE, AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Honorable Oliver W. Wanger U.S. District Judge

STIPULATION TO CONTINUE TRIAL AND RELATED DATES; ORDER; DECLARATION OF OLIVER U. ROBINSON; DECLARATION OF M. SCOTT FONTES TRIAL March 10, 2010 TIME 9:00 a.m. CTRM Dept. "3" NEW TRIAL: August 10, 2010 NEW TIME 9:00 a.m. CTRM Dept. "3" FILED COMPLAINT: 03-06-2007

COME NOW, the parties to this litigation, by and through their respective attorneys of record, and hereby stipulate and agree to continue the present trial date of March 10, 2010 to August 10, 2010, and to continue the related dates. The parties respectfully request that the Court execute the Order for the same.

As set forth below, and in the declarations of Oliver U. Robinson and M. Scott Fontes, which are attached hereto, good cause exists for the requested continuance as a result of the following:

Defendants Daniel Lindini and Roxanne Fowler are also defendants in a pending criminal trial regarding an inmate death where they face charges of second degree murder and assault by a public officer. The criminal action has been continued several times and is currently scheduled for trial on or about September 8, 2009 in the Kern County Superior Court, case no. BF112789A. Lindini and Fowler will not submit to a deposition in this case until after the completion of the criminal matter in order to preserve their Fifth Amendment right to prevent self-incrimination. A continuance of this matter to a date after the criminal case will permit the parties herein to complete the depositions of these two defendants, and will protect the defendants' constitutional rights, and will allow all parties herein to complete discovery for the purpose of facilitating settlement negotiations and providing all parties with a fair trial, if necessary

As such, through their respective counsel, all parties to this matter, stipulate to continue the trial and associated dates.

IT IS HEREBY STIPULATED that the trial date in this matter be continued from March 10, 2010 to August 10, 2010, or an alternative date convenient with the court.

IT IS FURTHER STIPULATED that the expert and non expert discovery cut-off dates, pretrial conference, dispositive and non dispositive pre-trial motion filing and hearing dates be continued to reflect the continuance of the trial date as follows: Proposed Date Present Date 8/10/10 Trial 3/10/10 6/7/10 Pre-Trial Conference 1/11/10 3/3/10 Settlement Conference 10/08/09 4/12/10 Hearing Dispositive Pre-trial Motions 11/16/09 3/12/10 Filing Dispositive Pre-trial Motions 10/16/09 4/5/10 Hearing Non-dispositive Pre-trial Motions 11/9/09 3/5/10 Filing Non-dispositive Pre-trial Motions 10/9/09 2/19/10 Expert Discovery Cut-off 9/18/09 1/29/10 Supplemental Expert Disclosure 8/28/09 12/28/09 Expert Disclosure 7/31/09 12/28/09 Discovery Cut-off Non-expert 7/31/09

IT IS FURTHER STIPULATED that this stipulation may be signed in counterparts.

ORDER

For good cause shown:

IT IS HEREBY ORDERED that the scheduled dates in this matter be continued as follows: Trial -- August 10, 2010 at 9:00 AM; Pre-Trial Conference -- June 7, 2010 at 11:00 AM; Settlement Conference -- March 3, 2010 at 10:30 AM; Hearing Dispositive Pre-Trial Motions -- April 12, 2010; Filing Dispositive Pre-Trial Motions -- March 12, 2010; Hearing Non-Dispositive Pre-Trial Motions -- April 5, 2010; Filing Non-Dispositive Pre-Trial Motions -- March 5, 2010; Expert Discovery Cut-Off -- February 19, 2010; Supplemental Expert Disclosure -- January 29, 2010; Expert Disclosure -- December 28, 2009; Discovery Cut-Off Non-Expert -- December 28, 2009.

NO FURTHER CONTINUANCES WILL BE GRANTED.

IN SUPPORT OF STIPULATION TO CONTINUE TRIAL AND RELATED DATES

I, Oliver U. Robinson, declare:

1. I am an attorney duly licensed to practice in the United States District Court in and for the Eastern District of California. I am a partner in the law firm of Robinson & Kellar, attorneys of record herein for defendants Daniel Lindini and Roxanne Fowler.

2. Defendants Daniel Lindini and Roxanne Fowler are also defendants in a pending criminal trial regarding an inmate death where they face charges of second degree murder and assault by a public officer. The criminal action has been continued several times and is currently scheduled for trial on or about September 8, 2009 in the Kern County Superior Court, case no. BF112789A.

3. Defendants Lindini and Fowler, upon the advice of the criminal defense attorneys, will not submit to a deposition in this case until after the completion of the criminal matter in order to preserve their Fifth Amendment right to prevent self-incrimination.

4. During the pendency of this litigation, all counsel have worked together in a spirit of collegiality and good-will in an effort to further this matter in a civilized fashion while aggressively representing their respective clients. As a result of counsels' desire to maintain civility in this matter, counsel have met and conferred and agreed to attempt, with the Court's assistance, to accommodate the requests of Lindini and Fowler and continue their depositions until the completion of the criminal matter. I am informed and believe that the present case scheduling would require the depositions of Lindini and Fowler prior to the completion of the criminal matter or would alternatively result in plaintiff proceeding to trial without having had the opportunity to depose Lindini and Fowler.

5. I am informed and believe that this continuance is necessary to protect the rights of Lindini and Fowler and allow them to have a fair trial in the criminal matter.

6. Based upon the foregoing, I believe that good cause exists to continue the current trial and related dates.

The matters stated herein are true of my own knowledge, except as to those matters which are stated upon information and believe and, as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct, and if called upon, could and would testify competently thereto.

Executed in Bakersfield, California, on this ____ day of June, 2009.

Oliver U. Robinson

IN SUPPORT OF STIPULATION TO CONTINUE TRIAL AND RELATED DATES

I, M. Scott Fontes, declare:

1. I am an attorney duly licensed to practice in the United States District Court in and for the Eastern District of California. I am an attorney with the law firm of Rodriguez and Associates, attorneys of record herein for plaintiff, Joseph Bensusan.

2. Defendants Daniel Lindini and Roxanne Fowler are also defendants in a pending criminal trial regarding an inmate death where they face charges of second degree murder and assault by a public officer. The criminal action has been continued several times and is currently scheduled for trial on or about September 8, 2009 in the Kern County Superior Court, case no. BF112789A.

3. I have been informed that defendants Lindini and Fowler, upon the advice of their criminal defense attorneys, will not submit to a deposition in this case until after the completion of the criminal matter in order to preserve their Fifth Amendment right to prevent self-incrimination.

4. During the pendency of this litigation, all counsel have worked together in a spirit of collegiality and good-will in an effort to further this matter in a civilized fashion while aggressively representing their respective clients. As a result of counsels' desire to maintain civility in this matter, counsel have met and conferred and agreed to attempt, with the Court's assistance, to accommodate the requests of Lindini and Fowler and continue their depositions until the completion of the criminal matter. I am informed and believe that the present case scheduling would require the depositions of Lindini and Fowler prior to the completion of the criminal matter or would alternatively result in plaintiff proceeding to trial without having had the opportunity to depose Lindini and Fowler.

5. Based upon the foregoing, I believe that good cause exists to continue the current trial and related dates.

The matters stated herein are true of my own knowledge, except as to those matters which are stated upon information and believe and, as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct, and if called upon, could and would testify competently thereto.

Executed in Bakersfield, California, on this ____ day of June, 2009. __________________________________

M. Scott Fontes

20090707

© 1992-2009 VersusLaw Inc.



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